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Public versus private health care: The final showdown

February 27, 2020

The decade-long legal battle between private and public health care is wrapping up this week in BC.

Lawyers from both sides have presented key evidence and arguments. Closing arguments from the intervenors, the BC Health Coalition and Canadian Doctors for Medicare, are being presented today. A decision is expected some time later this year. In the meantime, the principle of “care delivered based on need and not on wealth” hangs in the balance.

Those who have been following this epic case will recall that Brian Day, president and CEO of a private surgical clinic, is seeking to open the door to more private, for-profit health care. He wants the government to allow extra billing, which is when doctors bill patients and the public system for the same service. He wants them to allow dual practise, which is when doctors work in the public and private systems at the same time. He also wants them to allow private insurance for medically necessary services that are covered by the public system. Basically, he’d like to be able to charge patients whatever he wants without any restrictions.

For the past twenty years, Day and his colleagues at the Cambie Surgery Centre have been charging patients extra fees for procedures that are covered by provincial insurance. They want to be able to continue to do so and want the ban on private insurance to be lifted so they can draw more patients into the private tier they have been operating illegally.

The lawyers defending public health care have pointed out the financial motives behind this case. Based on evidence from previous years, Brian Day stands to gain $1 to $2 million per year in extra income if he wins. Other doctors who testified for Day also stand to benefit financially should private health care be allowed to take hold. While the money motive calls the validity of their testimony into question, the more important issue is the danger of private health care.

The government has presented expert testimony as well as data from around the world showing that private health care exacerbates wait times in the public system. It pulls doctors and other health professionals into the private tier. Doctors may manipulate patients into choosing private care to increase their profits. Private, for-profit health care puts those with the most money at the head of the line at the expense of the poor, the elderly and the chronically ill. An abundance of evidence also demonstrates that the quality of care is compromised in the private market.

Throughout this trial, Day and his lawyers have been making broad, sweeping indictments of public health care based on wait times. They claim that market-based care will overcome the wait time problem, but they have brought no evidence to support this claim. On the other hand, the defence has shown through both Canadian and international examples that there are viable solutions to wait times within the public system that do not compromise the principles of public health care.

Key in this case is whether the laws protecting public health care have denied any individual patients their section 7 Charter rights to life, liberty and the security of person. Day has argued that patients should have the right to avoid long wait times by obtaining private care.

But under the current system, no one in BC is denied the right to seek private care. The law doesn’t prevent doctors from practising privately or prevent patients from obtaining care private care. The law simply forbids doctors from billing patients and the public system simultaneously and from charging patients more than the public system would pay for medically necessary services. The law also bans private insurance for medically necessary services.

Together, these prohibitions supress private market development by making private health care less profitable. These laws are essential to protect public health care and ensure that care is delivered based on medical need and not on the ability to pay. A recent public opinion poll confirmed that nine in ten British Columbians continue to support this guiding principle of the Canadian public health care system.

As the Cambie case wraps up in court, we are confident that the hallmarks of Canada’s health care system –– equity, quality of care and universality –– and their importance to Canadians, will be a central factor in the court’s decision.